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We'll go ahead and get started. Good morning, good afternoon or good evening depending on where you are. My name is Jenny rose Halperin and I'm the executive director of Library Futures, and we are co hosting this webinar with

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the Internet Archive, and are beyond excited to have our two illustrious scholars with us today.

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So I'm going to start by by suggesting that folks can share their questions in the q and a.

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So here are some example questions you might be asking and the q amp a section, you can also upload questions if you want to see then asked you can respond to questions, we'll have plenty of time for Q amp A at the end, little bit over 30 minutes, so

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there's plenty of time for your questions.

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plenty of time for your questions. So again, my name is Jenny was helping and I'm the executive director of library futures library futures is a new advocacy organization that's standing up for the rights of libraries and the digital age.

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We work on technology education, advocacy and community. And we're always welcoming new coalition members, Chris Freeland is also here from the Internet Archive, and he will be sharing links throughout along with other folks from the Internet Archive,

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like Caitlin Olson, and they will be.

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We will all be co hosting as well throughout so if you have any questions, and definitely, please feel free to drop them in the chat will also be dropping links in the chat throughout.

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I am very excited to introduce our speakers.

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Michelle Woo, Blake read, and our moderator Amanda living dusky Blake read studies teachers and practices at the intersection of law policy and technology.

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He's a clinical professor at Colorado law, where he serves as the director of the Samuelson Glushko technology Law and Policy clinics he LPC, and this is Faculty Director of the telecom and platforms initiative at the silicon, flat, flat iron set center.

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Michelle Woo, was the Associate Dean for library services law library director and professor of law at the Georgetown University Law Center. Prior to Georgetown she served in multiple administrative library and faculty capacities at three other law schools,

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George Washington University, the University of Houston, and Hofstra. She has a BA from the University of California at San Diego at JD from west from California Western School of Law, and an M library from the University of Washington.

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The original the originator of the legal theory underpinning control digital lending, Michelle has also taught taught copyright and copyright licensing and regularly speaks at library conferences on these topics.

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She has authored or edited several dozen publications on copyright Library Management and Leadership and has provided leadership training first prospective directors and Associate Dean.

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Amanda live in dev ski is an associate professor at Georgetown Law, where her scholarship examines how intellectual property law can be used creatively to address challenging social issues that cross cut privacy and technology such as non consensual pornography

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biased artificial intelligence secret surveillance technology and and basis face surveillance. Thank you so much for joining us, everyone and I'm sorry if you could hear it's a bit of an occupational hazard of working from home.

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But, I am sorry if you could hear my dog behind me, who was walking around who's been walking around through this very short intro. And so I'm so excited to hand it over to Amanda to kick it off and discuss these two new papers and scholarship in copyright

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librarianship accessibility in the law, and technology. So, over to you, Amanda Thank you so much.

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Hello, I am so delighted to be here with all of you but especially with Michelle and Blake whose work I just admire so darn much and I cannot wait to get into.

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So I'm actually going to turn it over to them in just a second, to speak about their own work because who better to introduce it than the author's themselves, but to set up that conversation.

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I just want to say that Michelle and Blake both take very different approaches to the challenges that are created by copyright maximalism but there are a few common approaches, spanning copyrights heated history, it's problematic present, and it's possibly

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fantastic future. And there are also a few shared themes between the two papers and I love a triplet as you just saw, so will be addressing those three themes throughout this conversation.

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And those are overarching going to be policies capitalism and accessibility Doesn't that sound like fun. So let's dive in and I'm going to turn it over straight to Michelle to share a little bit more about her work.

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Amanda, more time for Q amp a, I'm not going to be kept the entire paper but really just focus on to make your point.

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The first point is on the purpose of copyright, which has always been the creation of dissemination of information. And that's what this was very logically from the design of our nation and our government, we can best powers in the people, not a monologue.

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So that's an all of our interests, for us to have informed voters and in order to be informed they actually have to have access to information. The founders and Congress decided that the best way to generate and spread information was through a balance

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of private and public interest business sector private interest that really is the author central so copyright grants limited control right to the author, and that's essentially for her to generate income from selling her work.

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And that hopefully incentivize the church create more, but after a copyrighted items sold the private interest in that item is exhausted, leaving only the public interest in consumption and the further spread of information.

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Now we will note there are a few exceptions mostly the public use of copyrighted work, but that is the scope of this paper so I'm going to skip over that for now.

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In practice, what is the balance between private and public interest me and copyright. It means that the other makes money when she sells a copy of the work, say a book.

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But that's a purchaser once they purchased it can lend donate resell destroy or the queen that without the author's permission. This downstream usability me seven items usefulness extends far beyond that original purchase.

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The key is that tablet was never intended to be a barrier to information is balanced was designed to maximize both the creation and spread of information.

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So the second point of my paper is about how major publishers and books, music, TV and movie publishing are engaged the pattern of practice that undermines the very purpose of copyrights, and I'm going to talk about just one example here, but I'm happy

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to talk about others and a q amp a if there's interest. The example that I look at is licensing. So, major publishers Mayfield have a largely eliminated the ability to purchase a copy of it works when it comes to electronic content.

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So sometimes this is hidden in a way that I think users don't really realize what they're losing. So for example, when you buy an E book on Amazon, you actually have not purchased that book, what you have done is your licensing access to that book.

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Under trends that Amazon says it can change at any time without notice, including deleting that book entirely from your library.

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Many of the public interest that I mentioned at the start, the right to lead and donate resell the keys are excluded are limited in these licenses, which means that many of the tabs designed by copyright to allow for widespread downstream use, particularly

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by those who do not have the personal means to buy it at its original price, those paths have been cut off.

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In addition, many comments personally uses such as recording a TV program are also prohibited. They would normally be legal under copyright under fair use, but in a service like Netflix recording that program is considered a violation of his contract

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terms, their placement of selling with licensing doesn't just harm the public or individual users, but also offers.

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The ebooks available at your public library for example, often caused many times more than the cost of that principle of work, or the cost of that the book to an individual user.

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And these licenses usually expire after a certain number of uses a 24, or after a certain period of time, a year, which means that the same content has to be repurchased repeatedly to retain access as a library budget does not magically increase to accommodate

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these arbitrarily increased costs. Well I end up spending the same amount of money. While attaining fewer books. This means that fewer authors works are being purchased and fewer authors will get the non monetary benefit of heightened exposure to their

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work through library access.

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Well, some authors, specifically best selling one will undoubtedly benefit from this type of licensing most others won't, the publishers, on the other hand can make a great deal more money off fewer titles.

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of the production and distribution. Now I've already detailed some of the short term costs of these licenses the loss of all those downstream uses, but I want to mention or emphasize the fact that the poor are disproportionately harmed, as many may have

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no means to gain access to these resources, without the second hand uses natural exhibited by publishers, the long term costs fall on everyone's ebooks cannot be preserved under these licenses.

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So ebooks that are available today may not be available tomorrow, the only the only information that's available to us, is what publishers decide to make available, and which we or our libraries can afford to pay for that day that information will necessarily

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be a small subset of all information published society will lose the ability to explore history to know what was real, or what was published it and get them time.

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In summary, copyright was intended to further the creation and dissemination of information that major publishers have used it to do the exact opposite depressing information is preservation and stress and the corruption of copyright should concern, everyone.

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Thank you.

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Amazing. I'm so excited to dive into this piece but first I want to put it into conversation with Blake's piece and I'm going to let Blake, say a few words about his work.

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Before we dive into the amazing synergies and overlap between the two so Blake, over to you.

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Hey, thanks, Amanda and thanks Michelle for the wonderful presentation and I hope folks will check out Michelle's paper which um if you haven't seen Chris says linked in the chat also just wanted to say thanks to everybody at the archive and library futures

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for putting this together. And I should offer a quick disclaimer up front which is that I'm speaking only for myself and not for any of my clients or my clinic.

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So, this paper is a little bit more specific than the than the the topic that that Michelle brought up and it's diving in on this specific intersection of disability and accessibility and copyright.

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And the goal I had with this paper is to better articulate the role that copyright law plays in the accessibility of creative works, and the prevailing narrative around this stuff is pretty copyright centric that copyright exceptions and limitations are

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really essential to ensuring the accessibility of creative works and for anyone that's followed the Marrakesh Treaty, this is the sort of discourse around the Marrakesh Treaty, that by, by bringing into effect a series of of national laws that include

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limitations and exceptions to transform books into Braille and alternative format copies that were going to end the so called book famine, that exists for for Braille readers and for for other folks who rely on different kinds of have accessible formats

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to be made. And it centers the conversation around permission from rights holders and from publishers, in particular, and I found is I've done a lot of work in this area that there's not a lot of focus on the threshold question of why does access to our

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or what is copyright get so fused into accessibility policy in the first place. And this is a common question when I talk with folks who are whose primary concern is with disability rights.

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Why, why are we talking about copyright, why are we here, because the real goal is about how we make books accessible and how we make the various social structures, whether that's education, our work, our culture, our entertainment or democracy or whatever

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else that books enable to make them accessible Why, why aren't we talking about that. Why are we spending so much time talking about copyright. So in this paper, I did a historical review of two case studies, one diving into tactile printing or Braille

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and sort of the most common version of that and closed captioning of television programming and I'll just talk about the the Braille example for a second happy to get into the other one in the q amp a and and so I the findings that I did is I went into

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the history of Braille and tactile printing policy in this country about why copyright and accessibility got wrapped up with each other.

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I got a triplet Amanda so So number one, we've got this non economic and it's not really even a moral rights driven insistence on the part of publishers not authors but publishers to be asked permission, but even when they've got no interest in withholding

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it so you see this real interest in being asked permission that's number one. Number two, I think you see proximity of of the creation of Braille books to the growth of copyright maximalism and permission culture in Policymaking institutions and the library

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of Congress and the copyright office in particular. So turns out that the, the National Library Service for the blind ends up being operated by the Library of Congress and comes into ascendancy right around the same time that the Library of Congress plays

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it starts to play a more pivotal role in copyright policy because of its housing of the copyright office. So proximity to institutions number two. And then the third one is the focus of the disability rights movement through the 1970s through the early

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1990s culminating with the Americans with Disabilities Act on places of public accommodation and government services so schools, libraries and other intermediaries for copyrighted works, and not copyright holders themselves as the locus for where do we

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do accessibility. We don't expect publishers to do it we expect libraries to do we expect schools to do it. we expect other third parties to do it. And so I think those three factors, the sort of the the insistence on permission.

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The proximity to policy policy making institutions that really care about copyright and this focus on third party accessibility are what, what, what brings us there.

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So, basically, we see this all really materialize. In the legislative hearings for the 1976 Copyright Act we see these demands publisher demands for permission.

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And we actually get this codified in Section 710 of the Copyright Act, which is the basically the Copyright Office gets to create standard forms for publishers to grant the office with permission.

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And then we see a couple of decades of that not really working of delays in Braille books, being created by the National Library Service. And so we finally make permission calls compulsory with the Chafee amendment to the Copyright Act and the Chafee

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amendment is basically the the first kind of specific exception limitation that we see in US law, and that forms the basis, at least in significant part of the Marrakesh Treaty, and in subsequent updates in the United States.

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So in other words, we leave America treaty which is now coming into effect being implemented in countries all over the world and what it really does is it brings us back to the status quo of kind of pre Civil War policy around Braille books, it sort of

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takes copyright out of place that copyright wasn't at the beginning.

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And so, it's, I think we talked about it as groundbreaking and as bringing into the book feminine but it really sort of just brings us back to where we started and we've got all of these other problems, how do we pay for book accessibility, how do we

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pay for the ecosystem around book accessibility, who should internalize the cost. What is the role that publisher should play beyond being asked permission and giving permission and what we see as a result is we still have enormous gaps in the availability

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of accessible books and the book famine remains remains very real. And I'll just say, and I'll wind this up, that we see the opposite with with captioning, which happens in another institution, the Federal Communications Commission.

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That's far away from policy that bypasses third parties and goes to the industry directly for accessibility obligations, and we see pretty widely different results.

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So I'll just wind up and say, you know, we focus on copyright limitations and exceptions is this necessary legacy of centralizing accessibility obligations with intermediaries.

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But negotiating permission shouldn't be our only focus it's really cost free to industrial rights holders to give permission, and that permission doesn't solve the broader economic barriers to making works accessible.

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And more broadly, I think it underscores that the copyright system is not always really fit for solving access as a public good as Michelle laid out at the beginning we had pretty grand visions for what copyright would do as this engine of democracy,

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and I think it fails at that purpose when we center copyright and a copyright The only lens through which we solve these problems and so I urge in the paper D centering copyright in our policy making approaches and think about copyright holders as as

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potentially being responsible directly for providing public gets all right I think I've gone too long so Amanda I'll stop there and hand it back to you.

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You didn't go too long at all that was, That was perfect. And let me later.

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Okay, so let's get both of y'all in the conversation. We're going to do some wild west stuff, so you can both chime in whenever I'm okay so before, so you both kind of focus on like a little copyright journey from the purpose of copyright which you both

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both defined differently to where we are today and I'm going to take us even beyond that to copyrights potential future but I want to go back to the beginning and dive into copyrights kind of heated historical context what you both address in your papers

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from different perspectives. So we know how the constitution describes the purpose of copyright, Michelle, you defined it as the creation and dissemination of information and Blake, you framed it more as accessibility.

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So how have these purposes historically informed copyright policy and if you want to get really specific and concrete what is a key example of a policy or case law decision that promotes the purposes that y'all most envision.

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I think we might both name I could be wrong about this like but I think about how Piece of cake is actually a good illustration of, of trying to balance all the interesting copyright.

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Yeah, yeah, jump in, I want you to both say why, if you both agree with that.

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Yeah, I completely agree so I mean, I think back to, you know, the progress clause and I actually don't think there's that much differentiation between what Michelle and I are saying is the as the sort of framing of the progress clause, whether that's

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about sort of fueling the engine of democracy, or whether that's making works accessible to people. You know that's it's sort of an ends in a means that I that I think are really are really closely connected.

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And then obviously we see copyright also connected to the interest of the First Amendment, in, in, in facilitating that that sort of discussion around democracy that sort of free culture that we expect in the United States.

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And I think the reason and Michelle I want to take words out of your mouth but I imagine the reason we both go to hockey trust is, you know, fair use is where a lot of the the the rubber meets the road on this stuff, and hockey trust is a case that really

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underscores that and it underscores it in a lot of different ways right and Michelle I'll defer to you to talk to the library piece of it but the accessibility piece of it is basically saying, Hey, we recognize through the creation of the or the enactment

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of the Americans with Disabilities Act and various other disability laws that making works accessible is consonant, with fair use and consonant as, you know, in an indirect way with the First Amendment and so that sort of gets us straight back to that

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constitutional bedrock and that was one of the first times we've seen a court really specifically recognize and say, Hey there, you know, we've got directives from other areas of policy not just copyright that sort of lead us to the search results.

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So that's sort of my of rationalization the whole thing Michelle I don't know what you think.

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sort of my rationalization the whole thing Michelle I don't know what you think. Yeah, I agree entirely with like that. I don't think that our coaches are really all that different.

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The only way that it can see democracy is if this ratio is actually accessible to everyone, not just to a subset of the population that has to be accessible to everyone so I do agree with that general principle in terms of how you dress, I actually think

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it doesn't go far enough but the reason why I would name it is because it does recognize that fair use recognizes again I should say that fair use allows for us is that the authors might or cut bait or as might want to stop that there are some pieces

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that are so publicly beneficial. That it warrants taking, even the entirety of the work even making multiple copies of the work even making works freely available to people that didn't go to the very very extreme of doing that without paying an author,

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additional fees and fear you can actually accommodate that which I think is what covered what was about.

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Yeah, and for the folks following along who may not be super familiar with the hottie trust decision. This was about the digitization of books by a library that serves certified disabled patrons, so that they can have access to books that might not otherwise

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be made available by publishers, and there was litigation challenging this digitization that eventually was indicated under the Fair Use doctrine, saying that, even though this was, you know, not totally different informed, it was serving a really important

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purpose that was fundamentally different than how these books were made to go out into the world and I think what's so interesting is that this is literally at the intersection of your two papers focus right libraries and disability rights and this sits

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right directly in the middle, that also connects exactly what you were saying right the dissemination creation of dissemination accessibility, they're actually both part of the broader principle of having an informed democracy, which is kind of the ultimate

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goal of copyright and but we're moving further and further away from that goal and you both talk about that in your papers in different ways. So could you each pinpoint a place where copyright began to become unmoored from the purposes we've identified

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and, in other words, how did copyright become a barrier to accessing information rather than a means of incentivizing it.

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Amanda, I wonder if I could take just a threshold question before we get to copyright as a barrier and just say, I don't do so. Thank you.

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I'm in a very permission culture. Culture mindset here.

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I guess the question that I have is, when we look at the progress clause and we look at, you know, so we talked a lot about for us but we look at the progress clause which says, we've got this aim that we want to serve and I think Michelle articulate

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that aim. I'm really, really powerfully in her paper.

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We have never successfully use the progress clause, or related constitutional doctrines, to examine whether copyright is really succeeding at that purpose right we have sort of looked to fair use as a way out of the barriers, but we've never looked at

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in at least not with any success at the progress clauses, as a check to see is Congress, achieving what it set out to do in creating the copyright system right in other words, and the way that I would look at it this specific problem I would look at us,

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I would say is the copyright system, resulting in books being distributed and accessible formats and maybe beyond that is the copyright system working for creators with disabilities as well.

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And, and that we, so I think before we even get to barriers we have this threshold failure, which is that the Supreme Court has largely looked at the Copyright Act and said, whatever Congress sort of things on that is fine we're not going to exercise

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a heavy hand in terms of scrutinizing how the copyright actually works. We're going to leave fair uses the safety valve in a couple of other things, and and we'll sort of look at it from there.

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I don't think Congress has done a particularly good job and I think in the research I was doing on the 76 Act when it was past year and looking at accessibility, there was very little questioning of how is this actually working all the questioning was

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really about. Is this okay with the publishers right Is this the are can we can we craft this in a way that makes the publishers, happy, and so I think this broader array of social concerns about the creation of copyrighted works, never really gets hashed

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out in the examination of the Copyright Act, we're only dealing with it after the fact with safety valves like fair use, which is a real problem.

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I would agree, 100% Blake, I mean I think if you look back at all the major legislation 1909 1976, and take a look at the testimony, it's heavily weighted towards the publishers who technically, we're not one of the beneficiaries of the copyright clause.

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So it's actually pretty curious to me how much of the role they play and obviously with the money that's being said some lobbying right now that extends that instance even further.

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But if I had to draw a line in terms of where I think it got significantly worse. And I agree 100% was like that it never met the promise, it never did exactly what it was supposed to do.

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And Congress has not been particularly vigilant about trying to make it to meet the better, a better fit for those purposes.

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I would say two things probably one is the copyright term Extension Act. When the Supreme Court essentially says Congress can extend copyright for as long as it was as long as it's not forever, and technology.

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And the reason why I would name technology is because it allows publishers to essentially put a bunch of prior restraint on copyright, even before we get to the copyright issues, they're able to control the, the corporate work and anthem example this

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is a licensing piece. So there are a lot of actions that are legitimate that are considered either statutorily legitimate like resale or fair use, like the recording and TV programs that publishers can just stop users from doing to license terms they

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stop you. By contrast, before you even get to the copyright issues.

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But they use those licenses, or they argue that they're using licenses to protect copyright.

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So in that way, technology, I think, ended up having a particularly negative effects When I asked to take it could have been extraordinarily empowering, especially in the case of disabilities.

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I mean, if you take a look at Amazon. Amazon had text to speech technology fairly early on for its books, and the publishers objected to that, despite the fact that people who want to use that feature pegged purchase that book, they had already paid the

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copyright owner. So technology could have been used to actually create a more equal world.

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But we have somehow allowed publishers to step in and suppress the quality and stuff, it actually brings me to one of the shared themes of your two papers, even though you come at it from different directions which is the congressional adoption of policies

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that continue to privilege copyright owners interest, including piracy concerns which you both talked about in your papers over the public's interest.

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So, if you had to say that there was a policy that most restricted the public access to knowledge, would either have you addressed the Digital Millennium Copyright Act as a restriction on that or is there another way to think about the DMCA and it's intervention,

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because it is as Michelle alluded to, kind of, what got in the way of technologies promise in some ways.

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And I'm also biased cuz I'm wearing my Run DMC a sweater so I want to talk about the DMCA a little bit

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It is tremendous a problematic or at least the provisions on circumvention or anti circumvention are particularly problematic, primarily because they do stop all sorts of fair use.

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And

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I think there was a way to accomplish the goal or what the publishers wanting to accomplish or what Congress want to accomplish, without necessarily making the prohibition against circumvention as broad as it was for example they could have built in a

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fair use exception that any type of fair use, you could actually circumvent, as long as you were constructing and copyrights, but they chose not to do that, and that that did, I think stand in the way of a lot of fair uses.

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Yeah, I mean I, as a long standing veteran of the section 1201 exemption process I will say, you know, there's, there's no no shortage of of examples of of the DMCA getting in the way by, by, by sort of standing as a backstop for digital locks that prevent

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accessibility that per van format shifting that prevents you know creativity and remix that prevent security research and repair and, you know, the list goes on of, of, of the sort of public goods and very important public goods that can't as a matter

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of of law.

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Be be produced under the DMCA without wrangling with this incredibly complex process that the Copyright Office administers, you know, on the other hand, I also see that in a lot of those cases and I think accessibility is a good one.

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That, that we're fighting in those to get to a not great result right which is, for example, thinking about ebook accessibility, we're fighting for the ability for a library or for a person with a disability to be able to strip off digital rights management,

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so that they can make a book accessible. That's solving in my mind that's that's solving like a very small part of that problem and it's a really important part of the problem it's a threshold part of the problem, but it doesn't get us to inaccessible

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book right it doesn't get it doesn't guarantee that the resources are going to be there on the other side to make a libraries whole collection accessible or that the you know that the, that they're not still going to have to go jump through hoops and

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seeing the demonstrations of how some of that works right when you compare what it's like if you are just trying to buy a book on the Kindle store, buy a book from Apple books or whatever or, or just to go get a book from a library, and then looking through

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the process that somebody with a disability has to go through all those extra steps that it takes and, you know, copyright is, is one of them and it's an important one, but there's all these additional steps and I think that resonates with a lot of the

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other areas that we're talking about here right. I think a lot of the things that we frame as copyright problems are also consumer protection problems right they are you know this is Michelle you talked a lot about Terms of Service right.

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This is just people being sold things that they don't understand how how they're going to work and what they're going to be allowed to do with it until after the fact until after they they press by on it and then suddenly, they can't do something that

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they're used to or it gets taken away it gets taken out of their library the license gets gets revoked. And I think if you talk to most people they don't think well gosh I ought to be able to go in there and hack my way out of it I think the first thing

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that they think about is, she I got ripped off like that really stinks and I would like my money back or I would like my book back like can't somebody come in and fix it.

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So, so copyright gives us this kind of libertarian where when we think about limitations and exceptions gives us libertarian way of solving these problems, and that's often like the best we've got right.

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But I also think there's this additional step which is like we deserve better like the system should work better than this like book should be born accessible, like, you know, like work should be, you know, licensed on friendly terms so that you can go

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do the stuff with your books that you used to do with your books like why can't we buy things that work that way. And I'm not sure copyright, either on the front end or on limitations and exceptions has the answers to all of those questions.

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I don't think it has the answers to huge numbers of those questions one of the ones Michelle brought up is contract law which I think is very important in this shift away from ownership to licensing especially in the digital context, but like you've also

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brought up.

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Consumer Protection Law, your paper talks about telecommunications law. And what are some of the other, like this kind of brings us to from 1700 to the 90s when we were talking about the DMCA to the present right the problematic president of copyrights

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existence. What are some of the other areas of law that are complicating the copyright question, and maybe getting in the way of us being able to come to a place where works are more broadly accessible.

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And then allow us to fall under the consumer protection that's like, like mentions like privacy. Privacy is implicated in the use of all the downside of tracking every single keystroke you're making on that candle.

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They know what you're doing what you're reading how long you spend on a book so privacy rights are involved as as our confidentiality and big data issues, I think.

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Yeah and Michelle totally cosine privacy cosine contract law, obviously I always think when we think about internet law the original Sins of internet law and why in the seven circuits cases around click wrap and shrink wrap contract which allow the relationships

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between rights holders and users to basically be set in totally unfavorable to the user totally friendly to the, to the publisher terms. I think that factors into our modern conversation about antitrust law and competition, right, we see a lot of sun,

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you know, in the same way that power gets exercised in the contract that gets exercise by folks who have centralized power are accumulated power through, through a lack of competition.

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Just real quick on telecommunications law actually point that out as an example of where and I do this in the paper talking about Closed captioning is kind of a countervailing story of where it actually can go right, which is, you know, the FCC and the

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90 is basically implements closed captioning regulations that require all TV to be closed caption with some exceptions and goes basically to the TV industry and says so the broadcast cable, satellite companies in the studios, like you have to do this

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figure it out here's all the details, we're going to sort of make you do it. And the funny thing about that one is, is actually copyright comes up right the the rights holders actually stepped in are like, well, I don't know, like, you know, this sort

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of interferes with, you know, some of them were rights holders themselves this interferes with our autonomy. Some distributors stepped in and said well this is going to call it, get us in trouble for violating other people's copyright if we add captions

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like copyright it's a real problem. And the FCC bless its heart is not like really close to copyright law, and basically it's responses like well, we don't know about all this copyright law stuff, but we assume you guys are contracting around all this

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stuff anyway, so go figure it out like we're not going to like let you blow up this really important set of public goods that Congress has enshrined in law by all of this, you know, this stuff about copyright like go go contract around it or Fair Use

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whatever like we don't care, and sorted out. And so I think that's that that's that shows an example of where we can focus on what is the public good that we're actually trying to achieve here and how do we how do we get there rather than focusing on

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the sort of means to get there as as being centered and copyright.

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Because the problem with using copyright is as your another second theme of both of your papers is that it was capitalism all along, and profits are driving a lot of this policy making in a negative direction away from the public interest.

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So how have the profits of whether it's publishers or producers or other copyright owners.

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How have those driven policies and practices that don't serve the public interest that either prevent it from being served, or just don't advance it.

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So I know it's not all the speaking for books, particularly, it gets more complicated when we're looking at music and movies and TV, but Facebook is not all publishers, I mean there are some publishers that do actually have models that work that are not

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driven by profit, we know about university presses, for example, which often do not have the same model, but where you see the most destructive practices is in the for profit areas and with the major publishers who do make most of their income office

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individual sale. And when you take a look at it. I mean, I don't really think that I have to explain the publishers themselves have said essentially they liked the idea of licensing they liked the idea of cutting off the ability to buy a book, because

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they can ensure through the licensing that every end user has to pay for it. There isn't a second hand use, and that is good for their bottom line. So how profit actually, I think gets in the way of copyright is.

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much money as possible, you're not going to want to have fair use, you're not going to want to have any of the downstream uses, you simply want to get money by every user. And that I think is just not something that's harmonious with the concept of copyright.

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Yeah, I agree. I think the, you know, there's so many places where the kinds of fair uses we're talking about here can be seen to cut into revenue streams.

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But I also think it's about as we talk about things like privacy and accessibility and consumer protection and so forth, keeping the conversation centered on.

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We don't want fair use, and you're going to have to fight for every inch of it and you might emerge at the end of it with a little bit of what you think you deserve keeps the conversation, away from the production of those public goods.

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Privacy accessibility, you know, fair transactions and that kind of thing, which are also going to cost money right accessibility cost money right it takes it takes resources to put together works in accessible formats privacy costs money right so much

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of the revenue around books, for example, is subsidized by, you know, collecting data right I mean, are looking at video right, take a look at what Netflix does in terms of viewing habits and viewing habits and how it uses that to focus it's it's forward

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looking development and all of that kind of stuff. So I also think the focus, keeping the conversation focused on that that individual transaction then sort of like what you're allowed to do after it keeps the conversation away from, how should this be

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what should public policy look like around these industries, because the, what's at the end of the rainbow for those conversations is not is not going to be good for the revenue of these industries either.

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Now, but before we move to the end of the rainbow, and I promise we will go there and What do y'all think the biggest threat that's currently posed by copyright serving the public interest is or to, I guess, copyright itself as essentially.

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Is it is it licensing ships, is it the permission culture, those are two of the ones you've mentioned, or is it some other secret option let her see threat that we haven't talked about yet.

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I'll take a stab at this one first i mean i so I think of something that Cindy Khan from from FFR the director of FF for, for many years and still I think told me one time which is like you got to stop looking at the world through copyright goggles, I've

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always I've always thought about that. And I actually think that is a pretty existential problem for the sort of copyright industries. And I think for the constituencies that they serve as well to sort of think of, we're going, whatever the problem is

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like copyright is going to be the solution twiddling some bit of copyright whether we're talking about the terms in which we can license the contours of fair use, whether it's the ability to to litigate copyright claims thing about the case Act and the

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tribunal or thing about whatever other substantive contour of copyright as the way of solving.

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For example, things like the ability for creators to make a living right thing. Oh, hello.

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Thinking about the ability to solve, of the, the public policy problems that they face that their communities face as well. And assuming that we can find the answers to that in the limited array of lovers and dials that copyright provides us.

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And you can see it right it's like we have starving artists who can't get health insurance. Instead of talking about health insurance as a problem in this country of medical care is a problem in this country, we're going to talk about, like, you know,

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monkeying with the royalty rates or something like that right we're going to we're going to always put it in sort of copyright terms and instead of going into problems directly and so I see that as the as the biggest problem is just being constrained

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by that lens of copyright and looking through copyright goggles.

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I do think there actually is quite a bit of action on on exactly what Blake's talking about that everyone is realizing that copyright. Copyright can be a barrier, but there are a lot of solutions that are possible outside of copyright.

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And so I hope that there's, there is attention to that within copyright and actually for a lot of issues, including healthcare. I actually think that the biggest barrier to real reform to the effectiveness of copyright protection is is pretty much everything

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is too much difference.

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The money too much difference to publishers is too much difference to business.

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If we actually look at the welfare of people, if we look at the welfare of society, short term and long term. I think we end up coming up with a completely different set of priorities, and a completely different set of rules legislation, but unless that

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happens I don't really see anything, changing.

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Yeah and Michelle just to underscore I completely agree within copyright and I think there are still a huge swath of problems that need to be solved with copyright The, the sort of fealty to the interests of industrial rights holders and not artists,

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either right like I feel like we always make this mistake in copyright debates to sort of assume that the industrial rights holders are the same as artists, but just focusing on what the sort of bottom line impact for them is going to be, and not what

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is ultimately going to serve artists, what's ultimately going to serve readers and viewers and users, not having that robust conversation not having all those folks at the table and taking their opinions seriously.

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You know that makes it hard to get good copyright policy for the things that copyright is good at solving and so just that total plus one on that.

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Like we spend a lot of time talking about all of the troubles and tribulations that copyright has created for not just creators and in some ways artists, but also for end users libraries for a variety of patrons for a variety of people.

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But I don't want to end on that note because that seems like a huge bummer.

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So I want to I want to get optimistic and imagine what might go right in copyrights fantastic future let's just pretend that there is a fantastic feature for copyright which I know requires us to use our imaginations really robustly.

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And one of the questions I actually had for y'all was is the best hope for reversing the trend of copyright maximalism fee centering copyright entirely and you both touched on that in different ways and it seems like sometimes the answer is yes, but I

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do have a kind of convert like a just a curious question of Is there any copyright policy that makes you optimistic in any way that currently exists and that could be invoked in the future.

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I'm sure you like when you talk about how you can use here you can take Fair Use off the board, no one's stopping you

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are used to have a tremendous amount of promise there is a lot that I think that we actually can do with calculated work.

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Just buy it through Fair Use the difficulty with that is that anyone who really wants to be creative, is going to have to be willing to essentially be sued.

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Anyone who's willing to be creative who's willing to test those barriers, those limits.

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They have to be willing to go through a very very lengthy court suit and that is unfortunate, but I would say that that I see a great deal of promise in fair use and how flexible it is in adapting to whatever technology's whatever society whatever needs.

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Come down the pike, it has the ability to do that flexibility of fair use for a win I love alliteration so I'm even more excited about that particular option Blake.

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What do you think, flexibility of fair use something else. Now, now I'm feeling a lot of pressure to to just come up with my alliteration but, um, yeah I totally agree on, on fair use.

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of public goods that we've talked about in generally whether that's consumer protection or privacy or accessibility our competition policy or whatever else. And I see that they have pretty long arcs and I think about, for example, where the FCC was on

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closed captioning in the 1970s right, the FCC had to be sort of dragged into thinking about accessibility. And I think a lot of these public goods that we're talking about in the communities that are associated with them, whether that's people with disabilities

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or visitors are folks who are repairing stuff or libraries are whoever else, continuing to engage with the machinery of copyright policy making and continuing to participate in those conversations and and to be at the copyright office to be at the library,

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of Congress to be engaging with the White House to be engaging with the IP committees in the in Congress, I think, I think there's education, and there is dialogue that can happen there that has changed how we view things even, you know, looking back

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to when the DMCA was created 20 years ago and and and the first raft of sort of tech an IP clinics were created. I think there's a lot more representation in those forums now.

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And I think that has the potential over time, you know I'm an optimist, that, that those voices that that didn't get brought to the table. Back in the 90s back in the 70s dating way back to the, to the 1909 Act.

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I think they can get brought to the table and I'm a big believer in trying to have those conversations and trying to find some balance.

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I think one of the places that we see that sort of potential site of resistance among all of those different Coalition's that you just mentioned Blake which were so rich and also totally absent from a lot of the conversations throughout copyright history,

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and then we can see potentially influencing the conversation going forward, another big one is libraries which is sort of Michelle's incredibly nuanced Valleywag and like what is one thing you would love to see libraries, pushing for in the future of

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copyright to add to the conversation that Blake was just saying is being enriched by more people being part of the dialogue at the Copyright Office and the triennial rulemaking or indeed if there are other potential modifications to copyright law, what

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would you like to see library is contributing to that conversation Michelle.

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Honestly, what I would like is something that is worldwide, which I, I'm not entirely sure it's possible, but I would actually like a worldwide. Digital Library of all published works, which I think is technically possible.

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But whether or not laws from different nations given the way I think it will. But I certainly think it's possible I think that what any library cannot do by itself.

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All libraries can do together and all libraries can do for society. I mean the preservation of our history the preservation of publications. It should be important enough to every single nation, that we should be willing to invest in it.

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But we just haven't gotten there yet.

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What are we, jumping the gun and go. I'm going to another question so please continue your line of thought.

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I was actually going to give a general version of the specific thing that Michelle just said, which is I think articulating a normative version and executing and iterating on that normative version of what libraries look like in a digital age what that

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should mean to the you know the citizens of 2020 and beyond. I think is critical right I think we're in this this very weird time where we don't know exactly what that is and it seems like the publishers are trying to articulate a world where there are

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no libraries anymore, right like some of the policy moves that I that I see publishers make are hard to explain, other than by it. We couldn't have had libraries in the first place if this view had taken hold.

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So I think articulating that that really grand vision that like Michelle just did is so critical for libraries to do to say this is the place in our digital community that libraries hold and we need a copyright policy to match that this is not just the,

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you know, the library policy of the 1970s. This is the, the library policy of whatever the future looks like.

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So I think that's that's super critical that actually brings us into a question from the chat, and I'm going to slightly rehash it to give a broader sort of question which is the person was asking whether they're a conference akin to America treaty could

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could be possible to just justify something like generally user rights, or I'm going to include general patron rights. And it's really hard because the Marrakesh Treaty was hashed out over such a long period of time and was so deeply embattled among various

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constituencies over many years and ways it's, it ended up in a place that was really powerful but it's not necessarily a model of success in terms of its procedure.

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So what do you think about something that's an International Gathering that talks about the rights of users or the rights of patrons.

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I mean International.

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Yeah, I'm sorry, go ahead, Michelle.

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You go first

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international laws tough, but the time and the resources that it takes to meaningfully engaged in that process really really hard and I think Marrakech stands as the sort of exception that demonstrates that rule, but I think you know one thing you can

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take away from Marrakech as a success story to the extent, and in Marrakech was successful in in a number of regards, you know, that we have specific exceptions and limitations around the world for people with disabilities now as is really really important

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and I didn't want to, under underwrite the impact of that. I think the critical thing that let Marrakech succeed was having that big vision, like the one that Michelle just under, just laid out and saying, This is the library that we need of the future

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we had in Marrakech we had the right to read we had ending the book famine we had those kind of ambitious touchdowns, that let all of the minutiae of international one negotiation copyright minutiae and all of that, sort of, at the end of the day ended

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up being subordinate to that because it was so hard to argue with the vision that everyone should have the right to read. Right. And so I think having that vision we need to have a library that has every book available, you know, universal digital library

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that kind of thing.

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You know that's the kind of thing that people can understand and that's the kind of thing that can give birth to these kind of successful international movements, I'm sorry, Michelle I didn't mean to step on your toes.

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Yeah, I mean I think you you phrase it perfectly and, and I do think international law is particularly difficult when it comes to copyright simply because it does vary, despite all the tree, very so widely.

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Just take a look at fair use is such a, it's so uniquely American, even with Fair Dealing and other, and other countries. Many countries don't have anything like it.

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So trying to come up with something that works everywhere is difficult I do think there is a path right now. Curiously, that is tied with all the discussions with climate change, right.

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We already know that Haiti has once before, lost all of all of its information resources. And I think a hurricane it was, and everyone is at greater risk today than they were yesterday and will be a greater risk tomorrow.

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So I think an argument can be made that building this national Digital Library is the only way to ensure the preservation of the world history. Now whether or not they will ultimately extend the patrons, which is what matters most to me is that we don't

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just save information but it is accessible information, that becomes a harder sell by at least and that we can get to the first step of building that library, maybe by essentially holding on to climate change and saying, Listen, this is, at least for

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solutions to a partial problems, we should address it now.

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So, to bring that back to copyright law because I think that is all closely related and one of the conversations we're going to have to have are what levers can be pressed make copyright change by invoking other crises right and i think climate is definitely

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one of those options.

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But both of the papers, this is the sort of final theme of the two papers together. Is this importance of accessible knowledge right it's no good if it's just preserved somewhere it has to be available to the public in order for it to be useful.

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And so what is one concrete policy or practice you'd like to see adopted related to copyright law that could increase accessibility for all humankind, or at least all American citizen or all American residents

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is a stumper I'm sorry I didn't mean to. We have one more question so don't worry I'll ask an easy win next time.

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I'm not gonna have an answer that play.

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Yeah, that's a that's a tough one. So, so I'm one one thing related to copyright law to increase accessibility. I mean, you know, one, one interesting idea I'm not sure if I, if I like this idea but I've heard it enough times and talking about this paper

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that that I think I throw it out there, which is to think about conditioning copyright protection on the provision of public, some of the public goods that we've talked, and talked about right.

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In other words, condition your receipt of copyright, and your ability to assert copyright as a right on your, you know, respect for privacy on your, your provision of works inaccessible formats, your, you know, your treatment of consumers and that kind

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of thing in other words like trying to hitch copyright protection and the grant of copyright protection to some of these ideas I think that's kind of an interesting idea I'm not sure I endorse it but since, since you said I had to do something related

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to copyright law that's that's the most interesting when I heard recently.

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That's great. I like that.

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My life is much more basic and that's too. I think to reduce separate bested down to 14 years.

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We could reduce the term customer success and that would do amazing things for accessibility.

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Yeah, there's a lot, there's a lot of dreamy options that are not totally off the table but not totally on the table that I think it's important to consider and fantasize about in a collective way, so it feels celebratory instead of deeply sad, but that

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actually brings me to the final question I have, which is going to be a riff on somebody's question which is, what are some of the ways that individuals can meaningfully meaningfully contribute to these policy discussions, involving copyright.

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Are there ways for individuals to get involved in these conversations to push the needle in one direction towards accessibility.

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Yeah, I mean i i think about.

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And actually this is a lot of the work that that my student attorneys do and my clinic and Amanda I know that yours, yours do as well, is that the the copyright office does a tremendous amount of studying of these issues from, you know, right now the

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thing that sticks out the most is is thinking about extra protections for news publishers and what that you know sort of akin to the Australia and you're in European models.

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So they do lots of these, these sort of rulemaking studies where they where they take public comment. And, you know, my experience of the Copyright Office is they sort of expect the rights holders to come in and then they sort of expect the sort of copy

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leftists of the world to come in and, you know, make the maximalist and minimalist pitches respectively. And what I've seen a number of times over the years is when they hear from people who are really affected by how copyright policy works in their everyday

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activities, whether that's hearing from librarians about how copyright affects their work, whether that's hearing from people with disabilities or disability services professionals or are hearing from people that are that are trying to repair their stuff

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are hearing from vendors hearing from Murray mixers hearing from people directly that have this experience with copyright and have something to share.

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So, engaging without public comment process and providing those real stories that aren't you know the the the sort of maximalist minimalist but like here's how this plays out in real life, and I will just say, If that's you, and you feel like you've,

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you've got that story or you've got a better yet, a group of people for whom that story is true. I'm always happy to talk to folks about that because sometimes we can see it from from paying attention to what the Copyright Office is up to you or what

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the committee's and Congress or up to, that'd be really powerful to go share that story and that's something that that clinics can help with.

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Yeah, and before, Michelle you're welcome to jump in, but I just want to address a second question that was on the queue from somebody else from a different angle which is what can we do as lawyers, recognizing that this is such a political question and

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such a not a political question the legal sense but a political question in the practical sense, how can we as lawyers be involved and I think Blake has identified one way which is representing individuals or small Coalition's that have stories to tell

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that otherwise would not be told, and that disrupt that maximalist minimalist ping pong expectation at the Copyright Office those stories need to be told and as a lawyer, it can be really powerful for you to represent those groups, although clinics, also

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can do the job. And in

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the top one or two all Blake comments and as well as yours. And I would say that it would be very helpful for lawyers to do I think is just providing a copyright is really not all that easy to understand.

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I think a lot of authors don't even know what their rights are. So even creating a toolkit for authors to understand how to, how to do all sorts of things are, what their rights are with their work.

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I think would be very useful. Also for the general public, specifically researchers I would say is doing research that actually debunks, a lot of the assumptions that publishers base their advocacy on, for example that piracy so damaging because they

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assume that every pirated copy is actually a

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lot sale.

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Whereas I think that can be easily debunked in terms of a lot of people will consume something for free. That will not actually pay for it. So I mean where you can do research is about a lot of their assumptions that form their arguments for why copyright

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should be the way that it should be, I think, researchers can actually do that research and confront publishers will card data.

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I try to do that research all the time when people leave free donuts in the break room and I never buy them. I personally am trying to fix this problem.

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And one more thing that you can do is be it well yeah be involved with library futures, and one place you can go So two things. Michelle you brought up, authors, not knowing their rights and one place you can go.

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For more information about that is the authors Alliance does a really great lot of work, putting out resources for authors to teach them about the contracts of their work, and the terms of their agreements and how to negotiate for those things so that's

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one place you can go, but the other place you can go to be involved, whether it's as an advocate or an individual is being involved with library futures which I think brings me to the end of the panel so I can kick it over to Jenny, maybe, maybe that

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was really seamless as a transition. Let's do it.

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Thank you so much, Amanda and thank you waffles, as well.

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Your presentation, it's important to also thank our pets. And thank you, of course to Michelle, and like, for this fantastic panel, and to Chris and Caitlin for supporting us links and follow ups throughout.

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I would love if we could get up our slides just to give a quick shout out to a couple of things. So save the dates for us. On December December 15 will be doing or run December, 15 will be doing a discussion on streaming media with some folks from point

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of view from PBS who are a distributor of streaming media DVDs materials for libraries and have a great library program, Kathleen dealer NT from john hopkins university, and with Chris Paulson from OSU.

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Very cool panel, very excited about it, folks have been asking a lot about what we're doing in terms of other media that are not just books.

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There will be a public domain day big celebration and 120 22, and throughout the month of January, we will be celebrating our first birthday here at library features.

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So once again, thank you so much to Blake and Michelle. There's a lot going on at library futures as well, that I am so excited to share with everyone, including projects are on news publishing will be releasing an international statement of solidarity

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to support some international work. And if you are join the coalition you'll get to be part of our first conversations around climate digital libraries and ebooks, which kicked off last Friday with a great conversation with Sarah Hutton from UMass Amherst

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and next let's move more data from internet production and need help from Metro library network so I really want to thank all of our community members and today in particular, Amanda Blake and Michelle, this has really been a fantastic conversation, and